BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006562 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was placed in a threatening situation while serving in Saudi Arabia.  Being deployed to Kuwait without a weapon during wartime caused the behavior which led to his discharge.  He further states he was told his discharge would automatically be upgraded 2 years from the date of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 7 September 1988.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/pay grade he attained during his military service was private first class/E-3.

3.  On 17 December 1990, the applicant requested assignment to noncombatant duties as a conscientious objector.  On 24 December 1990, his request was reviewed by the Division Staff Judge Advocate who recommended disapproval.  Subsequently, on 31 December 1990, his division commander recommended disapproval and stated that although the applicant's record indicated he made a sincere commitment to the Muslim faith in January 1990, he failed to notify his commander of his objections to bearing arms until after his unit was deployed in support of Operation Desert Shield.  In the interim, the applicant participated in combat training without objection.  The applicant was assigned to duties providing minimum practicable conflict with his asserted beliefs and was to remain in theater until a final determination was made.

4.  On 2 February 1991, court-martial charges were preferred against the applicant for violation of:

* Article 89 (disrespect toward a superior commissioned officer)
* two instances of Article 90 (disobeying a lawful order from a commissioned officer)
* Article 91 (disobeying a lawful order from a noncommissioned officer)
* Article 117 (wrongfully using provoking words)
 
5.  On 3 February 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  He indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

7.  On 4 February 1991, his immediate, intermediate, and senior commanders recommended approval of the applicant's request with the issuance of a discharge under other than honorable conditions.

8.  On 5 February 1991, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to private/E-1 and issuance of a discharge under other than honorable conditions.  The applicant was accordingly discharged on 13 February 1991.

9.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  This form further shows he completed a total of 2 years, 5 months, and 7 days of creditable active military service.  He held the rank/grade of private/E-1 at the time of his discharge.

10.  On 5 April 1991, the Department of the Army Conscientious Objector Review Board considered the applicant's application and determined he did not qualify as a conscientious objector.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions.  He contends he was told it would automatically be upgraded 2 years from the date of his discharge.

2.  The U.S. Army does not now have nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change to the character of service.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

3.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  There is no evidence in his records nor does he provide evidence which shows he was placed in a threatening situation while deployed to Saudi Arabia or that he was deployed to Kuwait without a weapon which subsequently caused the behavior which led to his discharge.  The applicant voluntarily chose to commit the offenses which ultimately led him to face a court-martial which could have resulted in a dishonorable discharge or a bad conduct discharge.  Instead, he chose to request a voluntary discharge.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.  Further, there is no provision to automatically upgrade discharges.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x____  _____x___  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120006562



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ABCMR Record of Proceedings (cont)                                         AR20120006562



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